Sunday, January 29, 2017

The line between mere fraud and identity
theft is murky. The Sixth Circuit has repeatedly found that the use of another
person’s signature does not constitute identity theft so long as the identity
of that other person is not purloined. While this holding is both logical and
guards against co-extensive reach of the fraud and identity theft statutes, it arguably
created a circuit split. Now, in UnitedStates v. White, the Sixth Circuit has narrowed what “use” of a “means of
identification” under Section 1028A is.

Ms. White was a travel agent
particularly skilled at obtaining low cost flights for her clients. One of her
most effective tactics, unfortunately, was to misrepresent the ticketed
passenger’s military status. The airlines had caught her before and revoked her
agency’s accreditation. But she found work as a subcontractor for another
agency. Once she began, the military status discounts of that agency’s
customers increased exponentially. Once confronted, White doubled down by
creating false military identification cards to support the discounts. There is
no crime so bad that a cover-up can’t make worse.

And it was just that cover-up
that the Government asked the Court to focus on. Instead of focusing on the use
of a name when obtaining the discounted fares, the Sixth Circuit
distinguished prior cases (U.S. v .Miller and U.S. v. Medlock) by
focusing on the creation of the identify identification cards—which both
constituted a means of identification and were used by White. With that, the
Sixth Circuit retained its distinction between the use of a name and the use of
an identity, but has apparently signaled its continued effort to narrow the
range of circumstances in which that distinction may have application.

Friday, January 20, 2017

Spouses share many things, but there’s some things they
shouldn’t—like clients. Or
so teaches the sad tale of Ronald Kelly.

When attorney Greg Robey lost at trial representing Kelly,
he turned Kelly’s appeal—raising
ineffective assistance of counsel—over to his wife and law partner, Margaret.
Worse yet, Greg then showed up at oral argument to present the IAC claim against himself! The appeal court, flagging this yowling conflict of
interest, refused to adjudicate the IAC claim. It also denied Kelly's appeal.

The Robeys hadn’t raised this now-successful jury
instruction issue at trial or as part of their IAC claim on direct appeal. So they
tried to jump on the bandwagon, arguing for the first time in a petition for en
banc review that Greg was ineffective for failing to raise the issue. But the appeals court wouldn’t entertain the claim at that stage and, moreover, once again
dinged the Robeys for the persistent conflict of interest.

At this point, Kelly fired the Robeys, and the Ohio Public
Defender stepped in. But the damage was already done. The defender moved to
reopen the direct appeal, arguing that the conflict of interest prevented Kelly
from raising meritorious appellate claims, including the jury-instruction issue.
In denying the motion, the appeals court reasoned that Greg’s decision to
forgo a lesser-included-offense instruction for an all-or-nothing approach fell
under the umbrella of reasonable trial strategy. Unfortunately for Kelly, he
had already sought state post-conviction relief while represented by the
Robeys during the pendency of his direct appeal, without raising the jury-instruction issue, leaving this avenue of relief foreclosed.

Kelly then headed to federal court, seeking habeas relief
for the ineffective assistance of both his trial and appellate attorneys. No go.
The Sixth Circuit, in an opinion from Judge Boggs, reasoned that the trial IAC claim failed because Kelly didn’t raise it on direct appeal, leading to procedural default. Further,
the court refused to excuse the default on the basis of appellate IAC: the
trial IAC claim would have been meritless, the court reasoned, because in its
view Greg’s all-or-nothing defense wasn’t objectively unreasonable, despite the fact that it conflicted with no
less than 10 eyewitness accounts.

The court acknowledged in conclusion how screwed up Kelly's case was because of "the poor performance of his counsel of direct appeal" but emphasized the deference afforded to trial counsel's strategic decisions.

Wednesday, January 18, 2017

It’s only three pages long but packs a ... punchy lesson about “termination” versus “revocation”
of supervised release. The Sixth Circuit held today in United States v. Cross that district
courts retain jurisdiction over defendants on supervised release even after supervision is revoked—at least for violations predating
the revocation.

After
serving 5 years for a marijuana offense, Robert Cross used drugs on supervision. In response, the
district court revoked supervision and tacked on 8 more months in prison, with 2 more years’ supervision. Then, two years later, while Cross was still on this
extended supervision, the court learned that he had committed a state theft
offense before the first revocation
hearing. The court gave him an extra day in prison and 5 more years of
supervision.

Cross challenged
the court’s jurisdiction to revoke the second time, but the Sixth Circuit wasn’t
having it. The difference, the court explained, is between revocation and
termination: Termination discharges supervision altogether, 18 U.S.C. § 3583(e)(1);
revocation merely requires part of the supervision to be served in prison, id. § 3583(e)(3). Cross was only revoked
the first time, not terminated, and thus the district court retained jurisdiction to revoke him again. It makes no difference, the Sixth Circuit reasoned, that §3583(h) says courts may impose a term of supervised
release following re-imprisonment. In the court’s view, this statute simply acknowledges
the reality that a defendant continues on release after a term of
re-imprisonment unless the court “terminates” supervision.